The number of people infected with Covid-19 continues to rise rapidly. As Covid-19 continues to spread, the question of how to deal with the virus in everyday work has become unavoidable. Many companies have already taken extensive measures to protect health, such as restricting business trips or meetings. At this stage, it is unclear which medium and long-term economic consequences Covid-19 will have.
In this alert, we want to highlight the most important labor law issues.
Can the employer deny employees access to the business premises?
In principle, employees have the right to employment and thus need to be allowed to access the business premises. An employer can ask a visibly ill employee to return to his home or agree with the employee on modified conditions of employment (working from home) Moreover, if the employer estimates that the employee’s health situation unmistakably increases the risks attached to the workpost, he can call the Labor physician who may order the employee to submit to a health examination.
What are the rules for remote work in Belgium under the existing situation?
The law of March 5, 2017 introduced a legal context for occasional remote telework. Telework being defined as a form of organization of the work, using IT whereby the work that would have been performed at the offices of the employer, is performed outside of these offices.
These provisions apply in the present Coronavirus context.
In accordance with those rules, employees are in principle, entitled to request such occasional remote work in case of force majeure or personal reasons if the nature of the work to be performed remotely is compatible with telework. Employer and employee need to agree on the provision of the necessary equipment to work remotely, the availability of the employee during the remote work period, and whether the employer will bear some costs incurred for the telework.
In principle the same duties and obligations apply, meaning that the employee must perform the same number of working hours and comply with the same performance norms and rules without having to strictly abide by the workschedule applicable in the company.
In the context of the Coronavirus, the Federal ministry of Employment has published a revised advice on March 15, 2020 urging employers to allow the employees to continue to work and favor the organization of telework.
Can employees stay at home without consent of the employer if they are not ill and do not have symptoms?
No, this is a breach of duty.
What are the conditions for sick leave? What is the process and how much do employees receive during sick leave?
Sick leave is conditional upon a medical certificate delivered by a physician declaring the employee incapable to work for a period to be specified in the medical certificate.
The employer is liable for the continued payment of the employee’s remuneration during the first 30 days of a period of incapacity to work (= the so-called “guaranteed salary”), thereafter, the employees will be entitled to sickness allowances from the National Sickness and Invalidity Office requested and paid via the employee’s mutuelle (or “health service”). The employer will only be liable to complete the request documents for the mutuelle that the employee must provide.
The amount of the sickness allowance is in principle limited to 60% of the gross salary, further reduced after the first 6 months. The length of the absence and the family situation of the employee will have an impact on the amount payable to the employee.
Can the employee claim remuneration in the event the employee is prevented from returning to work because he was placed in quarantine or because airlines, rail and local transport do not operate?
The claim of remuneration only exists for the time in which the employee performs his work, is on vacation or on sick leave. If the employee is prevented from returning to work, the employment agreement is suspended by reason of “force majeure” and no remuneration is due.
What happens when schools and kindergartens are closed?
In this case, employees could either take up vacation days (with the agreement of the employer), alternatively employees could claim up to 10 days of unremunerated days off for imperious family reasons. If more than 10 days’ absence are required, employees may agree with their employer to take up additional unremunerated time off.
Can the employer direct employees to make business trips to countries in which Covid-19 is already massively spread?
In principle, the employer can order business trips even in times of Covid-19. However, directing employees to do business trips to a country in which Covid-19 is already massively spread and the risk of infection is significant, might be deemed in breach of the employer’s duty of care for the employee’s health and safety and exposes the employer to fines.
What are the employer’s obligations due to the risk of contamination?
The employer has a duty of care for the employees. Therefore, appropriate occupational health and safety measures must be taken. In this respect, disinfectants, paper tissues etc. should be provided and technical possibilities as an alternative to physical meetings (e.g. video conferences) and temporary home office work arrangements should be made use of. Most importantly, the employer should establish instructions regarding the measures to be applied in case an employee becomes ill presumably infected with Covid-19.
Are there any special rules that apply when employees cannot work because the government closes businesses down and/or requires people to work from home?
In principle, force majeure, i.e. a sudden, unforeseeable circumstance independent of the will of the parties which renders the pursuit of the employment agreement momentarily totally impossible, suspends the execution of the employment agreement and the employees suffer loss of remuneration.
On March 12, 2020 the Belgian National Security Council has adopted lockdown measures for cinemas, cafés, restaurants and discothèques and all other sport/culture events have been cancelled. The employers affected by the lockdown and who have had to close their undertaking can introduce a request for “temporary unemployment for force majeure” in which case the employees’ whose employment agreement is suspended can benefit from a unemployment allowance.
Specifically in the context of the coronavirus crisis, the conditions for application of temporary unemployment for force majeure have been relaxed for employers that, while affected by the lockdown measure, only suffer a partial closure or are still allowed to offer limited services. These employers can put their affected employees in “temporary unemployment for force majeure” until April 3, 2020 included, with a reduced administrative burden. Moreover, exceptionally, alternated days of work and days of unemployment can apply and until June 30, 2020, the amount of the allowance for temporary unemployment for force majeure has been increased to 70% (instead of 65%) of the remuneration capped at 2.754,76 Eur gross / month).
Employer’s not affected by the lockdown, but whose activity has been affected by the coronavirus crisis (e.g. reduction of clientele, production, turnover or orders…) may apply for “temporary unemployement for economic reasons” pursuant to which, subject to conditions, the employees will be entitled to unemployment allowances.
Exceptionally, until June 30, 2020, the amount of the allowance for temporary unemployment for economic reasons has also been increased to 70% (instead of 65%) of the remuneration capped at 2.754,76 Eur gross / month) and the concerned employees will be entitled to a supplement equal to at least 2 euro per day of economic unemployment payable by the employer (or in some cases by the social fund of the JLC to which the employer belongs).
Are there any obligations with respect to consultation of works councils and/or unions?
In principle, the works council must be consulted and they have to give their advice, suggestions and complaints on all measures that could impact the organization of the work, the employment conditions and the return of the undertaking. The employee’s representatives in the works council are also entitled to information and consultation about employment issues.
In principle, the impact of the coronavirus crisis and of the lockdown measures imposed by the government on the employment within the undertaking are subjects that should be the object of information and consultation of the works council. However, the limitation of meetings presented as a preventive measure by the Federal Ministry of Employment will hamper the normal information and consultation of the works council. It would be advisable to examine whether or not an alternative mode of information and consultation of the works council, e.g. via skype conference, should be organized to maintain the “social peace” in the undertaking.
How can economic consequences be mitigated?
- Employees should be asked to reduce overtime hours and whenever possible the employer should promote telework.
- In the event of a closure of the site, execution of the employment agreement is suspended and the employer may apply for temporary unemployment by reason of force majeure for his employees.
Are there any rules/government aids to help businesses stay open?
On March 6, 2020, and subject to certain conditions, the following aid measures have been adopted:
- payment schedules, exoneration of late payment interests and fines for non-payment of VAT and other Tax debts can be requested from the Tax Administration;
- payment schedules over the next 18 months for the employer’s social security contributions of the first two quarters of 2020 can be requested from the National Social Security Office.
Apart from those Federal measures, all three regions have introduced their own, distinct, measures to support the companies affected by the lockdown :
- Flanders introduced the corona nuisance premium (‘corona hinderpremie’) awarding companies affected by a complete closure a fixed premium of 4,000 euros per establishment occupying at least one full-time employee (with a maximum of five establishments). The fixed premium will be increased with an additional premium of 160 euros per day if the closure extends beyond 21 days. For companies which only have to close at weekends, the premium is reduced to 2,000 euros.
- In the Brussels-Capital Region companies belonging to one of the following sectors: (A) Eating and drinking establishments, (B) Travel agencies, tour operators, booking offices and related activities, (C) Retail trade other than grocers’ (including night shops), petfood shops, pharmacies, newspaper shops, petrol stations and fuel suppliers, (D) Recreational and sporting activities are also entitled to claim a premium of 4,000 euros.
- In the Walloon Region, a fixed compensation will be awarded to Micro and Small companies in the sectors legally required to close : in the catering, hospitality, tourism and retail business the compensation amounts to 5.000 euros, hairdressers will receive an amount of 2.500 euros.
Are you prepared?
In many respects, dealing with the Covid-19 cannot be distinguished from dealing with other disease waves such as the annual wave of influenza. However, given the expanding scale and economic consequences, more far-reaching measures may be necessary.
The health of your employees is a valuable asset that must be protected. In this respect, precautions should be taken to ensure that both your staff and your company can meet the challenges of Covid-19.
You need support?
Please do not hesitate to reach out to us in case would like to discuss the consequences of Covid-19 in your everyday work and how, if necessary, you can mitigate the economic consequences of supply bottlenecks and operational restrictions.
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